Deferred Improvement Agreement - Thomas Road Properties
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
RECORDING "REQUES~D PURSUA.},JT 1'0
CDV'T CODE SECTIONS 6103 AND 27383
DOC U MEN T : 1 372541 8 Tit I es 1 / Pages 40
" II ""11 "11111111 III
AOO 1372541 :::~
Fees
Taxes
Copies
AMT PAID
. No Fees
BRENDA DAVIS
SANTA CLARA COUNTy RECORDER
Recorded at the request of
City
ROE j:j 005
6/02/1997
2 28 PM
SPACE ABOVE lHIS LINE FOR RECORDER'S USE
(SP ACE ABOVE THIS LINE FOR RECORDER'S USE)
Deferred Improvement Agreement
DOCUMENT TITLE
IKKS\333870 02
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DEFERRED IMPROVEMENT AGREEMENT
AGREEMENT BY OWNER OR HIS SUCCESSORS IN INTEREST TO
CONSTRUCT LAND DEVELOPMENT IMPROVEMENTS No. 96-01
Project Identification: BABBS CREEK P ARKW A Y IMPROVEMENTS
This is an agreement between the City of Gilroy, a municipal corporation, hereinafter
referred to as "City," and THOMAS ROAD PROPERTES, a California limited partnership,
hereinafter referred to as "Owner."
WHEREAS, Owner is the fee owner of the property described in Exhibit A ("Property")
WHEREAS, in connection with the subdivision and development of the Property and
other real property owned by Owner, Owner has dedicated to City the real property more
particularly described on Exhibit B attached hereto, (the "Dedicated Property"), upon which
Owner is required to perform the work more particularly described in Section II-BABBS CREEK
PARWAY IMPROVEMENTS (the "Work").
WHEREAS, Owner wishes to defer performance of the Work and City agrees to such
deferment provided Owner (or Owner's Successor in interest) agrees to perform the Work as
herein provided.
NOW, THEREFORE, IT IS AGREED:
1. AGREEMENT BINDING ON SUCCESSORS IN INTEREST.
This agreement, together with the attached exhibits, is an instrument affecting the title or
possession of the Property described in Exhibit A. All the terms, covenants and conditions herein
imposed shall be binding upon and inure to the benefit of the successors in interest of Owner.
Upon the sale or division of the Property described in Exhibit A, the terms of this agreement shall
apply separately to each parcel and the Owner of each parcel shall succeed to the obligations
imposed on Owner by this agreement.
II. BABBS CREEK PARKWAY IMPROVEMENTS.
A. City and Owner agree that the Work described in this section may be deferred
because of the mutually agreed holdover lease attached hereto as Exhibit C (the "Lease") for the
Dedicated Property, which is a portion of the south side of Babbs Creek Parkway. Upon
execution of this agreement by City and Owner and recordation of this agreement in the Official
Records of Santa Clara County, California, the City will lease back to Owner the Dedicated
Property which contains the fenced wooden barn shown in the Lease located on assessors parcel
number 808-38-44. The Work may be deferred until notice is given by the City Community
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Development Director as called for under Section II D and shall be commenced and completed
within the time required by this Section II-BABBS CREEK P ARKW A Y IMPROVEMENTS.
B. Owner is obligated to perform the Work and install improvements for Babbs Creek
Parkway as a condition of Gilroy City Council Resolution No. 94-78 made 11/7/96 for PUD: NS
94-22 described in Exhibit D; and Recorded Final Tract Map No. 8663, "The Vineyards, Unit 1 ";
and as shown on improvement plans titled BABBS CREEK P ARKW A Y LANDSCAPE PLANS
dated 10/25/94 as previously delivered to and approved by City. Owner agrees to begin the
required Work following receipt of the notice described in Section lID below, and complete the
Work called for under this agreement within the later of the two following dates: (i) twelve (12)
months following receipt of the notice described in Section lID, or (ii) twelve (12) months
following termination of lease. The Work includes but is not limited to demolition of barn and
fencing, installation of new fencing, soil preparation, plant and irrigation landscaping, and one
year maintenance of the improvements following completion thereof.
C. Owner agrees to perform the Work as described in the attached Exhibit C, in the
improvement plans described in Section lIB above and in Section 6.2 of the Lease, as well as
required off-site improvements in the manner set forth in this agreement. The Work and
improvements listed are understood to be the minimum requirements foreseen at this time. The
Work shall include all items necessary to provide a complete operational facility including all
appurtenances in conformance with current City standards in effect at the time of construction.
D. When the City Community Development Director determines that the reasons for
the deferment of the Work no longer exist, he shall notify Owner in writing to commence its
performance, installation and construction. The notice shall be mailed to OWNER or OWNER'S
successors as shown on the latest public record. The notice shall describe the Work to be done by
Owners, the time within which the Work shall commence and the time within which the Work
shall be completed in accordance with Section 1m above. Allor any portion of said Work may be
required at a specified time, subject to Section lIB above. Each Owner shall participate on a pro
rata basis in the cost of the Work and improvements to be installed. If an Owner is obligated to
pay a pro rata share of a cost of a facility provided by others, the notice shall include the amount
to be paid and the time when payment must be made.
III. PERFORMANCE OF THE WORK.
Owner agrees to perform the Work and make the payments required by City as set forth herein or
as modified by the City Council. Owner shall cause plans and specifications for the improvements
to be prepared or updated by competent persons legally qualified to do the Work and to submit
said improvement plans and specifications for approval prior to commencement of the Work
described in the notice and to pay city inspection fees. The Work shall be done in accordance
with city standards in effect at the time improvement plans are submitted for approval. Owner
agrees to commence and complete the Work to City's satisfaction within the time specified in the
notice given by the Community Development Director and to notify the City at least 48 hours
prior to start of Work. Owner shall maintain all improvements constructed by Owner at Owner's
sole cost and expense at all times prior to acceptance by City. In the event Owner fails to perform
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any Work or construct any improvements required under this agreement, City may, at its option
do the Work and collect all costs from Owner. Permission to enter onto the Property by the City
is granted to the Owner or its contractor as may be necessary to construct such improvements.
IV. JOINT COOPERATIVE PLAN.
Owner agrees to cooperate upon notice by City with other property owners, the City and other
public agencies to provide the Work set forth herein under a joint cooperative plan if the City
determines this method is the most feasible to secure the performance of the Work when called
for.
V. REVIEW OF REQUIREMENTS.
If Owner disagrees with the requirements set forth in any notice to commence the Work he shall,
within thirty (30) days after the date the notice was mailed, request a review of the requirements
by the City Council. The decision of the Council shall be binding upon both City and Owner.
VI. MAINTENANCE OF IMPROVEMENTS.
City agrees to accept for maintenance those improvements specified in Section II which are
constructed and completed in accordance with City standards and requirements and are installed
within rights of way or easements dedicated and accepted by resolution of the City Council.
Owner agrees to provide any necessary temporary drainage facilities, access roads or other
required improvements, to assume responsibility for the proper functioning thereof, to submit
plans to the appropriate City agency for review, if required, and to maintain said improvements
and facilities in a manner which will preclude any hazard to life or health or damage to adjoining
property.
VII. BONDS.
Upon execution of the agreement, OWNER agrees to and shall deliver to the City two good and
sufficient bonds, in form and content and issued by a bonding company acceptable to City, as
follows: (i) a performance bond to be executed in the face amount of not less thanjinsert amount
which is one hundred fifty percent (150%) of estimated cost] Dollars ($44,775.00 ), and (ii)
a payment bond to be executed in the face amount of not less than the performance bond
described in (i) immediately above, both such bonds being issued for the Work described in this
agreement.] The performance bond shall secure payment to City of any loss due to the default of
the contractor or its inability or refusal to perform its contract. The payment bond shall secure
payment to the subcontractors and persons renting equipment for the furnishing of labor or
materials for the Work, as provided in Sections 66499 et seq. of the Government Code of the
State of California, the codes, ordinances, resolutions, rules and the regulations of the City, and
this agreement. Each bond shall set forth a time period for performance by the contractor of its
obligations and the terms and conditions on which the City may obtain the proceeds of the bond.
The performance bond shall by its terms remain in full force and affect for a period of not less
\KKSI33387002
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than one year after completion of the Work by Owner and acceptance of said Work by City, to
guarantee the repair and replacement of defective material and faulty workmanship. Upon
completion of the Work by Owner and acceptance of the Work by City, Owner may substitute for
the performance bond securing maintenance described above, a separate maintenance bond in the
amount of ten percent (10%) of the total contract price of the Work (provided that the amount of
said bond shall not be less than One Thousand Dollars ($1,000)) to cover the one year
maintenance.
VIII. INSURANCE.
Owner shall maintain, or shall require any contractor engaged to perform the Work to maintain, at
all times during the performance of the Work called for herein, and until the improvements
constructed by Owner are accepted by City, at no cost to City (a) a policy of general liability and
property damage insurance in the minimum amount of One Million Dollars ($1,000,000),
combined single limit for both bodily injury and property damage; (b) workers' compensation
insurance as required by law; and (c) broad form "Builder's Risk" property damage insurance with
limits of not less than one hundred percent (100%) of the estimated value of the improvements to
be constructed by Owner pursuant to this agreement. All such policies shall provide that thirty
(30) days written notice must be given in advance to City prior to termination, cancellation or
modification. The insurance specified in (a) above shall name City as an additional insured and
the insurance specified in (c) shall name City as a loss payee, and shall provide that City, although
an additional insured or loss payee, may recover for any loss suffered by reason of the acts or
omissions of Owner or Owner's contractors or subcontractors or their respective employees.
Owner hereby waives, and Owner shall cause each of its contractors and subcontractors to waive,
all rights to recover against City for any loss or damage arising from a cause covered by the
insurance required to be carried pursuant to this agreement or actually carried by Owner in
connection with the Work described in this agreement, and will cause each insurer to waive all
rights of subrogation against City in connection therewith. Ail policies shall be written on an
occurrence basis and not on a claims made basis and shall be issued by insurance companies
acceptable to City. Prior to commencing any Work pursuant to this agreement, Owner shall
deliver to City the insurance company's certificate evidencing the required coverage, or if required
by City ,a copy of the policies obtained.
IX. INDEMNITY.
The Owner shall indemnify, defend with counsel of City's choice and hold the City free and
harmless from all suits, fees, claims, demands, causes of action, costs, losses, damages, liabilities
and expenses (including without limitation attorneys' fees), including without limitation all claims
relating to injury or death of any person or damage to any property, incurred by City in
connection with (i) any damage done to any utility, public facility or other material or installation
of the City which the Owner or any contractor or subcontractor of the Owner, or any employee of
the foregoing, shall do in grading or working upon the Property or any other property in
connection with the Work; or (ii) arising or resulting directly or indirectly from any act or
omission of Owner or Owner's contractors, or subcontractors, or any employee of the foregoing
in connection with the Work performed by them in connection with this agreement including
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without limitation those matters arising out of the deferment of permanent drainage facilities or
the adequacy, safety, use or non-use of temporary drainage facilities, the performance or non-
performance of the Work.
This Section IX shall not be deemed to require the Owner to indemnify the City against liability
for damage arising from the sole negligence or willful misconduct of the City of its agents,
servants or independent contractors who are directly responsible to the City.
ATTEST:
\ 4 C-/
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IN WITNESS WHEREOF, City has executed this agreement as of
CITY CLERK
Susanne E. Steinmetz
by: Interim City Clerk RHONDA PELLIN
~~D AS TO FORM:
~C;.~
CITY ATTORNEY
Linda A. Callon
IN WITNESS WHEREOF Owner has executed this agreement as of ~ -( - 77
OWNER:
THOMAS ROAD PROPERTIES,
a California limited partnership
~~~
NOTE: If Developer is a corporation, the complete legal name and corporate seal of the
corporation and the corporate titles of the persons signing for the corporation shaIl appear above.
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ST ATE OF CALIFORNIA
COUNTY OF ~1ntu f!/cU (I
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On /~)rl i Cf) /qci7 , before me,0Ur,tlfll L-.I\/Juml:Hl, personally
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IKKS\333870 02
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proved to me on the basis of satisfactory
evidence to be the person(s) whose
name(s) is/are subscribed to the within
instrument and acknowledged to me
that he/she/they executed the same in
hi~ authorized capacity(ies),
and that by hislher/their signature(s) on
the instrument the person(s), or the
entity upon behalf of which the
person(s) acted, executed the
instrument.
CAPACITY CLAIMED BY SIG:'iER
Though statute docs no( require the: SOlar)
to fill in the data below. doing so may prove
invaluable to persons relying on the
documenl
o INDlvlDUAL
o CORPORATE OFFICERS(S)
Title(s)
~ PARThER(S) 0 W.!ITED
[ii;j GE:-iERAL
o ATIOR:-iEY-[l\;-FACT
o TRUSTEE{S)
o GUARDIANiCO:-;SERVATOR
o OTHER:
SIGNER IS REPRESEl'lI:-iG:
Name ofPel>On(s) or Entity(ies)
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YJW/uLi/ { r~ (, ~ Thfnt~C ~K1 Prc~r~
SIGNATURE NOT {\ C(i II .~ c Llrndtti r ".Jlir
WITNESS my hand and official seal.
-6-
BEING all of Lot 1 as shown on the map of "Tract No. 8663,
The Vineyards Unit. 1", which map is filed for record in
Book 667 of Maps at pages 38 and 39, Records of Santa Clara
County, California.
EXHIBIT "A"
BEING a portion of the Babbs Creek Park Preserve as shown
on the map of "Tract No. 8663, The Vineyards, Unit No.1",
which map is filed for record in Book 667 of Maps at pages
38 and 39, Records of Santa Clara County, California, and
being more particularly described as follows:
BEGINNING at the most northerly corner to Lot 1 of said
Tract No. 8663, in the westerly line of Thomas Road, as
shown on said Map, and running thence along the
northwesterly line thereof S.65023'24"W. 102.66 feet to the
northwesterly corner thereof; ther.ce along the westerly line
thereof South 107.89 feet to the southwesterly corner
thereof; thence continuing along the easterly line of said
Babbs Creek Park Preserve South 10.09 feet to the
southeasterly corner thereof in the northerly line of Babbs
Creek Drive; thence along said northerly line and the
southerly line of said Preserve along a curve to the left
with a radius of 320.00 feet from a tangent bearing of
S.82021'27"W., through a central angle of 4018'24" for
distance of 24.05 feet; thence along a tangent curve to the
right with a radius of 280.00 feet, through a central angle
of 11056'55" for a distance of 58.39 feet; thence West 44.38
feet; thence leaving the northerly line of Babbs Creek Drive
N.6042'17"E. 72.27 feet to a point in the northwesterly line
of Babbs Creek Park Preserve; thence along said
northwesterly line East 19.37 feet, N.22013'24"E. 78.01
feet, N.77035'21"E. 82.82 feet, N.45037'47"E. 90.13 feet and
N.22013'16"E. 44.30 feet to the most northerly corner of
Babbs Creek Park Preserve in the westerly line of Thomas
Road, as shown on said Map; thence along said westerly line
and the easterly line of said Preserve South 94.94 feet to
the point of beginning, and
CONTAINING THEREIN 0.449 Acres (19,540 Sq. Ft.).
EXHIBIT "B"
LEASE
(Babbs Creek Park Preserve)
THIS LEASE, for reference purposes only dated March 1, 1997, is entered into by and
between THE CITY OF GILROY, a municipal corporation ("Landlord"), and THOMAS ROAD
PROPERTIES, a California Limited Partnership ("Tenant").
RECITALS
A. Tenant is the developer of that certain real property development which is the
subject of Tract Map dated May 1994 relating to Tract No. 8663, the Vineyards, Unit No.1, which
provides for dedication by Tenant to City of Babbs Creek Park Preserve (the "Preserve").
B. An employee of Tenant, Fidel Santiago ("Occupant") currently resides in a single-
family residence on real property located adjacent to the Preserve, commonly known 625 Thomas
Road (the "Adjacent Parcel"). The Adjacent Parcel is part of a fann operated by Tenant ("Farm").
The Preserve includes a barn and storage building located in the vicinity of Babbs Creek Drive and
Thomas Road all as shown as Exhibit "B" attached hereto, which barn and storage building are
utilized by Occupant in connection with farm operations for which Occupant is employed by
Tenant.
C. Tenant has requested that City enter into this Lease to allow the continuance of the
use of the barn and storage building by Occupant so long as Occupant resides on the Adjacent
Parcel. City is willing to lease the barn and storage building and the real property upon which they
are located to Tenant (which real property is more particularly described on Exhibit "c" attached
hereto) on the terms and conditions set forth in this Lease.
NOW, THEREFORE, for valuable consideration, the parties agree as follows:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the real property more particularly described on Exhibit "c" attached hereto, together
with the barn and storage building located thereon (collectively, the "Premises"), upon all of the
conditions and agreements set forth in this Lease.
2. LEASE TERM.
2.1 Thrm. The term of this Lease ("Term") shall be for ten (10) years, subject
to earlier tennination as provided in this Lease, commencing when all of the following have
occurred (i) this Lease has been executed by Landlord and Tenant, (ii) City has accepted the
dedication of the Preserve to City, and (iii) Tenant has executed and delivered to Landlord a
deferred improvement agreement in form and substance approved by Landlord in Landlord's sole
discretion, for the work described in Section 6.2 below (the "Improvement Agreement"); provided
that if the Term has not commenced by April 30, 1997, this Lease shall terminate effective as of
April 30, 1997. The date of the commencem~nt of the Term is referred to in this Lease as the
"Commencement Date", "Lease Termination" shall mean the expiration or sooner termination of
this Lease.
2.2 Early Tennination. Notwithstanding Section 2.1 above, the Term shall
tenninate prior to the natural expiration thereof immediately upon the date that Occupant ceases to
live in the Residence. In addition, Tenant shall have the right to terminate this Lease at any time
during the Term by providing City with not less than thirty (30) days prior written notice of
termination. .
2.3 Acceptance. Tenant hereby accepts the Premises in its "AS IS" condition
without representation or warranty of any kind, express or implied, and subject to all applicable
laws. Landlord shall have no obligation to construct any improvements within the Premises for the
benefit of Tenant. Neither Landlord nor Landlord's agents makes any representation or warranty as
to the suitability of the Premises for the conduct of Tenant's business, the condition of the
Premises, or the use or occupancy which may be made thereof. As the prior owner of the Premil'es,
Tenant is satisfied that the Premises are and will be suitable for Tenant's intended use and assumes
all risks in connection with the use and lease of the Premises. Without limiting the foregoing,
\KKS\31190a.04
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EXHIBIT C
Tenant assumes all risk and liability in connection with any flooding which may occur on or about
the Premises.
3. RENT.
3.1 &nt. During each month of the Term, Tenant shall pay to Landlord as Rent
the amount of Fifty Dollars ($50). Rent shall be paid in advance on the first day of each calendar
month throughout the term without offset, deduction, prior notice or demand, except that a full
month's rent shall be paid upon the execution of this Lease by Tenant and the prorated Rent
payable for the period, if any, prior to the first full calendar month of the Term shall be paid on the
first day of said first full calendar month. Rent for any partial month shall be prorated.
3.2 Additional Rent. All amounts which Tenant is required to pay under this
Lease, and all damages, costs and expenses which Landlord may incur by reason of any default by
Tenant under this Lease shall be deemed to be additional rent hereunder ("Additional Rent"). Upon
nonpayment of Additional Rent, Landlord shall have all of the rights and remedies with respect
thereto as Landlord has for the non-payment of Rent. "Rentals" as used in this Lease shall mean
Rent and all Additional Rent. All Rentals shall be paid in lawful money of the Ullited States to
Landlord at the address specified in this Lease for purposes of notice, or to such other persons or at
such other places as may be designated in writing by Landlord from time to time. All Rentals shall
be paid without offset or deduction and, except as otherwise expressly provided in this Lease,
without prior notice or demand.
4. TAXES.
4.1 Real Property Taxes. Tenant shall pay, before the same become delinquent,
all Real Property Taxes imposed against Landlord or Tenant in connection with this Lease or
against the Premises. As used in this Lease, Real Property Taxes means any form of assessment,
license, fee, rent tax, levy or tax (other than net income, estate, successor or inheritance taxes), now
or hereafter imposed by any authority having the direct or indirect power to tax or by any city,
county, state or federal government or any improvement or other district or division thereof,
whether or not now customary or within the contemplation of the parties, ordinary or extraordinary,
general or special, or resulting from increased rate or valuation, together with any taxes levied or
assessed in lieu of, in substihltion for, or in addition to existing taxes and assessments against the
Premises, including without limitation any possessory interest tax. In connection with California
Revenue and Taxation Code Section 107.6, Landlord states and Tenant acknowledges that by
entering into this Lease, a possessory interest subject to property taxes may be created. Tenant or
other parties in whom the possessory interest is vested may be subject to the payment of property
taxes levied on such interest.
4.2 Tax on Leasehold or Personality. Tenant shall be responsible for and shall
pay before delinquency all municipal, county or state taxes, levies and -fees of every kind and nature
including, but not limited to, general or special assessments assessed during the Term against any
leasehold interest or trade fixtures or personal property of any kind, owned or leased by or placed
in, upon or about the Premises by Tenant. Tenant agrees to pay before delinquency the amount of
all taxes levied upon or measured by the rent payable hereunder, whether as a so-called sales tax,
transaction privilege tax, excise tax, or otherwise. If such taxes, levies or fees are assessed, levied,
or imposed upon Landlord or any portion of the Premises, Landlord shall give Tenant a statement
of the amount applicable to the Premises. If a separate assessment of the improvements is not
available from the appropriate governmental authority, Landlord's good faith allocation shall be
binding on Tenant. In such event, Tenant shall pay Landlord on demand for such taxes, levies and
fees applicable to the Premises.
5. CONDUCT OF BUSINESS BY TENANT.
5.1 Use of the Premises. Tenant shall use the Premises solely for storage of
equipment used in connection with the farming operations on the Farm and for the storage of the
personal property and possessions of Occupant while Occupant is employed by Tenant in the
maintenance and operation of the Farm, subject to the other terms and conditions of this Lease, and
for no other purposes without the prior written consent of Landlord, which may be withheld in
Landlord's sole discretion.
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5.2 Compliance with Law. Tenant, at its expense, shall comply promptly with
all applicable laws regulating the use by Tenant of the Premises, which shall include required
stmctural alterations. Tenant, at its expense, shall take all steps required to cause the Premises to be
kept, maintained, used and occupied in compliance with the Americans With Disabilities Act of
1990, as the same may be amended from time to time. In the event Tenant becomes aware of any
alterations required by this Section 5.2 above, in lieu of making such required alterations, Tenant
may terminate this Lease by giving written notice oftennination to Landlord; provided, however,
that Tenant shall indemnify Landlord from any and all claims, damages, losses, liabilities or
expenses (including without limitation attorneys' fees) arising as a result of Tenant's failure to
make such alterations during the Lease Term. Upon such termination, Tenant shall comply with
the provisions of Section 6.2 of this Lease. Tenant shall not use or pennit the use of the Premises
in any manner, that will tend to create a nuisance or constitute waste. Tenant shall not dump or
store waste materials or refuse or allow such to remain on the Premises. Tenant shall not store or
permit to be stored or otherwise place any other material of any nature whatsoever outside the barn
and storage building. Tenant and Tenant's agents, officers, directors, employees, contractors,
representatives, servants, licensees or invitees, including without limitation Occupant (collectively
"Tenant's Agents"), shall not use, store or dispose, or allow the use, storage or disposal of, any
Hazardous Materials on any portion of the Premises. As used in this paragraph, Hazardous
Materials means any chemical, substance or material which has been or is hereafter determined by
any federal, state or local governmental authority to be capable of posing risk of injury to health or
safety, including without limitation, petroleum, asbestos, polychlorinated biphenyls, radioactive
materials and radon gas. Tenant's obligation to defend, hold harmless and indemnify pursuant to
this Paragraph shall survive Lease Tennination.
6. MAINTENANCE. REPAIRS. AND AI. TERA nONS.
6.1 Tenant's Responsibility. Tenant shall, during the Term, keep in good, safe
and clean order, condition and repair the Premises and every part thereof. In no event shall
Landlord have any repair or maintenance responsibility for the Premises, or any portion thereof.
Tenant waives the provisions of California Civil Code section 1941 and 1942 and any similar law
now or hereafter in effect.
6.2 Condition Upon Surrender. On Lease Tennination, Tenant shall have
removed its personal property, trade fixtures and other property from the Premises, and shall have
otherwise surrendered the Premises to Landlord in as good condition as when received by Tenant
under this Lease, all that Tenant's sole cost and expense. Concurrently with the execution of this
Lease, Tenant shall execute and deliver to City the Improvement Agreement. Within the time
required by the Improvement Agreement Tenant shall have removed the barn, storage building and
Alterations (defined in Section 6.3) from the Premises, shall have finished all landscaping and
hardscaping in accordance with the landscaping improvement plans entitled "Babbs Creek Parkway
Landscape Plans," prepared by Greiner Engineers dated October 25, 1994, and shall have
completed all other work required to be done by the Owner in accordance with the tenns and
conditions of the Improvement Agreement.
6.3 Improvements by Tenant. Tenant shall not, without prior written consent of
Landlord, which consent may be withheld in Landlord's sole discretion, make any alterations,
improvements, or additions (collectively, "Alterations") to the Premises.
7. INSURANCE AND INDEMNITY.
7.1 Tenant to Maintain. Tenant shall at all times during the Term, at Tenant's
sole cost and expense, maintain in effect workmen's compensation insurance in the minimum
amounts required by law, and comprehensive general liability and property damage insurance in the
minimum amounts of One Million Dollars ($1,000,000) per occurrence and aggregate, combined
single limit for both bodily injury and property damage which includes blanket contrachlalliability,
broad form property damage, personal injury, completed operations, products liability, and fire
damage legal (the "Liability Policy"). The types of insurance and minimum limits specified above
are the minimum required by Landlord, and Landlord may from time to time require changes
and/or additions thereto to meet changed circumstances, including without limitation changes in the
purchasing power of the dollar and changes consistent with the standards required by other
landlords in the county in which the Premises is located. The Liability Policy shall specifically
insure Tenant's performance of the indemnity, defense and hold harmless agreements contained in
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Paragraph 7.4, although Tenant's obligations pursuant to Paragraph 7.4 shall not be limited to the
amount of any insurance required of or carried by Tenant under this Paragraph 7.1 and Tenant is
responsible for insuring that the amount of liability insurance carried by Tenant is sufficient for
Tenant's purposes.
7.2 Landlord Approval. All insurance required to be carried by Tenant
hereunder shall be in companies, on forms and with loss payable clauses satisfactory to Landlord
and copies of policies of such insurance, certified by the insurer to be a true and correct copy of the
insurance policies, shall be delivered to Landlord by Tenant prior to the Commencement Date. A
new certified policy shall be delivered to Landlord at least thirty (30) days before expiration of the
old policy. No such policy shall be cancelable except after thirty (30) days' written notice to
Landlord. The Liability Policy to be carried by Tenant under this Lease shall name Landlord and
its agents and designated lenders as additional insureds. All insurance shall be the primary
insurance as respects Landlord and the Liability Policy shall contain a cross liability endorsement.
Such policies shall provide coverage on an occurrence basis and not on a claims made basis. In no
event shall the limits of such policies be considered as limiting the liability of Tenant under this
Lease.
7.3 Waiver of Liability. Landlord and Tenant each hereby waives any and all
rights of recovery against the other or against the employees, representatives and agents of such
other party for loss of or damage to such waiving party or its property or the property of others
under its control, arising from any cause to the extent insured against under any insurance policy
carried by such waiving party and to the extent such waiver is permitted under such insurance
policy and does not prejudice coverage under such policy. Tenant shall obtain and furnish evidence
to Landlord of the waiver by Tenant's insurance carriers of any right of subrogation against
Landlord.
7.4 Tenant to Hold Landlord Harmless. Tenant hereby agrees to defend,
indemnify and hold harmless Landlord and Landlord's employees, representatives and agents from
and against any and all claims, damages, losses, liabilities or expenses (including without limitation
attorneys' fees) due to any cause including without limitation, bodily injury and property damage,
which arises out of or is in any way attributable to the use or occupancy of the Premises or any part
thereof by Tenant or Tenant's Agents, the acts or omissions of Tenant or Tenant's Agents or
Tenant's breach of this Lease, except to the extent caused by the willful misconduct or negligence
of Landlord. This provision and Tenant's obligation hereunder shall survive Lease Termination.
7.5 Landlord's Disclaimer. Landlord shall not be liable for injury or damage
which may be sustained by the person, goods, wares, merchandise or property of Tenant, its
employees, invitees or customers or any other person in or about the Premises caused by or
resulting from fire, steam, electricity, gas, water, flooding or rain which may leak or flow from or
into any part of the Premises, or from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the same, or
from any other cause, whether such damage or injury results from conditions arising upon the
Premises or from other sources.
8. REPAIRS AND RESTORATION.
8.1 Damage. If at any time during the Term the Premises are damaged, whether
partially or entirely, Tenant shall have the option to either (i) promptly repair such damage or
rebuild the Premises at Tenant's sole cost and expense, in which event this Lease shall continue in
full force and effect, or (ii) terminate this Lease by giving written notice of termination to Landlord
within thirty (30) days following the event of damage, in which event Tenant shall comply with the
terms and conditions of Section 6.2 of this Lease. If Tenant fails to provide Landlord with written
notice of termination within thirty (30) days after the event of damage, Tenant shall be deemed to
have elected to terminate this Lease pursuant to (ii) of this Paragraph 8.1 above. In no event shall
Landlord be obligated to repair or rebuild the Premises in the event of any damage or destmction to
the Premises from any cause. All repairs by Tenant shall be done in compliance with all applicable
laws, permit requirements and any covenants, conditions or restrictions of record, by a licensed
contractor, and shall be done in a good workmanlike manner. Before commencing repair of the
Premises, Tenant shall submit plans and specifications to Landlord for Landlord's approval, such
approval not to be unreasonably withheld. This provision and Tenant's obligations hereunder shall
survive Lease Termination.
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8.2 Notice. Rent Abatement. Refixturing. Tenant shaH notify Landlord in
writing immediately upon the occurrence of any damage or destruction to aH or any portion of the
Premises. There shaH be no abatement of Rent or other Rentals payable hereunder and Tenant shaH
have no claim against Landlord for any damage suffered by Tenant by reason of any such damage,
destmction, repair or restoration. In no event shaH any damage, destruction, restoration or repair of
any portion of the Premises result in an extension of the expiration date of the Lease.
9. ASSIGNMENT AND SUBLETTING.
9.1 Landlord's Consent Required. Tenant shaH not, either voluntarily,
involuntarily or by operation of law (i) assign, sell or otherwise transfer all or any part of the
Tenant's interest in this Lease or in the Premises, or (ii) permit any part of the Premises to be
sublet, occupied or used by anyone other than Tenant or (iii) permit any person to succeed to any
interest in this Lease or the Premises, (all of the foregoing being coHectively referred to as a
"Transfer"). In no event shall Landlord be required to consent to any Transfer. If Tenant is a
corporation, any dissolution, merger, consolidation or reorganization of Tenant, the transfer,
assignment or hypothecation of any stock or interest in such corporation in the aggregate in excess
of twenty-five percent (25%), or the sale (cumulatively) of fifty percent (50%) or more of the value
of Tenant's assets shaH be deemed a Transfer. If Tenant is a partnership, a withdrawal or
substitution of any partner(s) owning twenty-five percent (25%) or more of the partnership
(cumulatively), any assignment(s) of twenty-five percent (25%) or more (cumulatively) of any
interest in the capital or profits of the partnership, the sale (cumulatively) of fifty percent (50%) or
more of the value of Tenant's assets, or the dissolution of the partnership shaH be deemed a
Transfer. If Tenant is a limited liability company, any dissolution, merger, consolidation or
reorganization of Tenant, the transfer, assignment or hypothecation of a membership, economic or
other interest in the limited liability company in the aggregate in excess of twenty-five percent
(25%), or the sale (cumulatively) of fifty percent (50%) or more of the value of the limited liability
company's assets shaH be deemed a Transfer. In the case of any other entity comprising Tenant,
any transfer, assignment or hypothecation of any interest in such entity in the aggregate in excess of
twenty-five percent (25%), or the sale (cumulatively) of fifty percent (50%) or more of the value of
Tenant's assets shall be deemed a Transfer. In no event shaH Tenant hypothecate, mortgage, pledge
or encumber Tenant's interest in this Lease or in the Premises or otherwise use this Lease as a
security device in any manner, nor shaH Tenant transfer any right appurtenant to the Lease or the
Premises separate from a permitted Transfer. Tenant expressly agrees that the provisions of this
Article are not unreasonable standards or conditions for purposes of Section 1951.4(b )(2) of the
California Civil Code, as amended from time to time, under the federal Bankruptcy Code, or for
any other purpose. Any Transfer by Tenant in violation of this Paragraph 9.1 shaH be a default by
Tenant tinder this Lease.
10. EMINENT DOMAIN. If a portion of the Premises is taken by power of eminent
domain, which does not result in a termination of this Lease, then this Lease shaH continue in fuH
force and effect as to the part of the Premises not so taken. There shaH be no abatement of Rent or
other Rentals payable hereunder and Tenant shaH have no claim against Landlord for any damage
suffered by Tenant by reason of any taking of the Premises under the power of eminent domain.
Any award for any taking of aH or any part of the Premises under the power of eminent domain
shall be the property of Landlord, whether such award shaH be made as compensation for
diminution in value of the leasehold or for taking of the fee. In no event shall Landlord be
obligated to make any repairs or perform any restoration or other work required as a result of a
taking. A sale by Landlord to any authority having the power of eminent domain, either under
threat of condemnation or while condemnation proceedings are pending, shaH be deemed a taking
under the power of eminent domain for aH purposes under this Article.
11. UTILITY SERVICES. Tenant shaH arrange for, and shall timely pay directly to the
appropriate utility or service supplier aH charges for any service or utility metered, supplied or
provided to the Premises during the Term of this Lease. Landlord shaH not be liable in damages or
otherwise for any failure or interruption of any utility or service to the Premises and no such
unavailability failure or interruption shall entitle Tenant to terminate this Lease or shaH otherwise
affect Tenant's obligations under this Lease. Landlord shall be entitled to cooperate voluntarily and
Tenant agrees to cooperate, with the efforts of governmental authorities or utility suppliers in
reducing energy or other resource consumption.
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12. DEFAULTS. REMEDIES.
12.1 Defaults. The occurrence of anyone or more of the following events shall
constitute a default hereunder by Tenant:
as and when due.
12.1.1 The failure by Tenant to make any payment required by this Lease
12.1.2 The failure by Tenant to timely observe or perform any of the
express or implied covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in Paragraphs 12.1.1.
12.1.3 (a) The making by Tenant of any general assignment for the
benefit of creditors; (b) the appointment of a tmstee or receiver to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days, or (c) the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where seizure is not discharged within thirty (30) days.
12.2 Remedies. Upon a default, Landlord shall have the following remedies, in
addition to all other rights and remedies provided by law or otherwise provided in this Lease, to
which Landlord may resort cumulatively or in the alternative:
12.2.1 Landlord may continue this Lease in full force and effect, and this
Lease shall continue in full force and effect as long as Landlord does not terminate this Lease, and
Landlord shall have the right to collect Rentals when due. No act by Landlord other than giving
written notice to Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises or the appointment of a receiver on Landlord's initiative to protect Landlord's interest
under this Lease shall not constitute a termination of Tenant's right to possession.
12.2.2 Landlord may terminate this Lease and Tenant's right to
possession of the Premises at any time if (i) such default is in the payment of Rentals and it is not
cured within three (3) days after written notice from Landlord, or, (ii) with respect tJ the defaults
referred to in Paragraph 12.1.2 such default is not cured within fifteen (15) days after written notice
from Landlord; provided, however, that if the nature of Tenant's default is such that more than
fifteen (15) days are reasonably required for its cure, if Tenant does not commence to cure the
default within the fifteen (15) day period or does not diligently and in good faith prosecute the cure
to completion within a reasonable time thereafter, or (iii) with respect to the default specified in
Paragraph 12.1.3, such default is not cured within the respective time specified in that paragraph.
The parties agree that any notice given by Landlord to Tenant pursuant to this Paragraph 12.2.2
shall be sufficient notice for purposes of California Code of Civil Procedure Section 1161 and
Landlord shall not be required to give any additional notice in order to be entitled to commence an
unlawful detainer proceeding. On termination, Landlord has the right to remove all of Tenant's
personal property, signs and trade fixtures and store same at Tenant's cost and to recover from
Tenant as damages:
12.2.2.1 The worth at the time of award of unpaid Rentals and
other sums due and payable which had been earned at the time of termination; plus
12.2.2.2 The worth at the time of award of the amount by which
the unpaid Rentals and other sums due and payable which would have been payable after
termination until the time of award exceeds the amount of such Rental loss that Tenant proves
could have been reasonably avoided; plus
12.2.2.3 The worth at the time of award of the amount by which
the unpaid Rentals and other sums due and payable for the balance of the Term after the time of
award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus
12.2.2.4 Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform Tenant's obligations under this
Lease, or which, in the ordinary course of things, would be likely to result therefrom, including,
without limitation, any costs or expenses incurred by Landlord: (a) in retaking possession of the
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Premises; (b) in maintaining, repamng, preserving, restoring, replacing, cleaning, altering or
rehabilitating the Premises or any portion thereof, including such acts for reletting to a new tenant
or tenants; (c) for leasing commissions; or (d) for any other costs necessary or appropriate to relet
the Premises; plus
12.2.2.5 Such other amounts in addition to or in lieu of the
foregoing as may be pennitted from time-to-time by the laws of the State of California.
The "worth at the time of award" of the amounts referred to in Paragraphs 12.2.2.1 and
12.2.2.2 is computed by allowing interest at the Stipulated Rate (defined in Paragraph 15). The
"worth at the time of award" of the amount referred to in Paragraph 12.2.2.3 is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1 %).
12.2.3 No delay or omission of Landlord to exercise any right or remedy
shall be constmed as a waiver of any such right or remedy or of any default by Tenant hereunder.
No termination by Landlord pursuant to this Article 12 shall relieve Tenant of any of its
obligations under Section 6.2 of this Lease.
12.3 Default by Landlord. Landlord shall not be deemed to be in default in the
perfonnance of any obligation required to be performed by it hereunder unless and until it has
failed to perform such obligation within thirty (30) days after written notice by Tenant to Landlord
specifying wherein Landlord has failed to perform such obligation; provided, however, that if the
nature of Landlord's obligation is such that more than thirty (30) days are required for its
performance then Landlord shall not be deemed to be in default if it shall commence such
performance within such thirty-day period and thereafter diligently prosecute the same to
completion. Notwithstanding any other provision of this Lease, in no event shall Landlord be liable
to Tenant for consequential damages, or loss of or interference with Tenant's business, including
without limitation lost profits.
12.4 Expenses of Prevailing Party. If either party incurs any expense, including
reasonable attorneys' fees, in connection with any action or proceeding instituted by either party
arising out of this Lease, the party prevailing in such action or proceeding shall be entitled to
recover its reasonable expenses including attorneys' fees from the other party.
13. RIGHT OF ENTRY. Landlord and its agents shall have free access to the Premises
during all reasonable hours for the purpose of examining the same to ascertain if they are in good
repair, protecting the Premises, posting notices of nonresponsibility, and exhibiting the same to
prospective purchasers, lenders or tenants.
14. TRANSFER OF LANDLORD'S INTEREST. Upon any transfer or transfers of
Landlord's interest in the Premises, the transferor shall be automatically relieved 0; any and all
ohligations and liahilities on the part of Landlord accming from and after the date of such transfer,
provided that the transferee is liable for any and all obligations and liabilities on the part of
Landlord accming from and after the date of such transfer. Tenant shall attorn to any transferee of
Landlord's interest in the Premises.
15. INTEREST. Any amount due from Tenant to Landlord hereunder which is not paid
when due shall bear interest from the due date until paid an annual rate of interest (the "Stipulated
Rate") equal to the greater of (i) ten percent (10%); or (ii) five percent (5%) plus the rate established
hy the Federal Reserve Bank of San Francisco, as of the twenty-five (25th) day of the month
immediately preceding the due date, on advances to member banks under Sections 13 and 13(a) of
the Federal Reserve Act, as now in effect or hereafter from time to time amended. Payment of such
interest shall not excuse or cure any default by Tenant under this Lease.
] 6. MISCELLANEOUS.
] 6.1 Time of Essence. Time is of the essence with respect to the performance of
every provision of this Lease.
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16.2 Captions. The article and paragraph captions contained in this Lease are for
convenience only and shall not be considered in the construction or interpretation of any provision
hereof.
16.3 Entire AlP"eement and Amendments. This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and
no other agreement or understanding pertaining to any such matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
16.4 Notice. Any notice required or permitted to be given hereunder shall be in
writing and may be served personally or by mail. If served by mail it shall be addressed as follows:
Landlord:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020-6141
Attn: City Administrator
Tenant:
Thomas Road Properties
c/o Glen Loma Group
7888 Wren Avenue, Suite D 143
Gilroy, California 95020
Any notice so given by mail shall be deemed effectively given three (3) days after being deposited
in the United States mail, registered or certified, postage prepaid and addressed as specified herein.
Either party may by written notice to the other specify a different address for notice purposes.
Notwithstanding the foregoing, any legal notices required to be sent by one party to the other
(including without limitation, a notice pursuant to California Code of Civil Procedure Section
1161) shall be delivered in the manner required or allowed by law.
16.5 Holdover. This Lease shall terminate without further notice at the expiration
of the Term. Any holding over after Lease Termination with the consent of Landlord shall be
constmed to be a tenancy from month to month, but otherwise on the same terms and conditions set
forth in this Lease. If Tenant remains in possession of the Premises after Lease Termination
without Landlord's consent or fails to surrender the Premises in the condition required by
Paragraph 6.2, Tenant shall indemnify, defend and hold Landlord and Landlord's employees,
representatives and agents harmless from and against any claims, losses, damages, expenses or
liabilities (including without limitation attorneys' fees) resulting from Tenant's failure to surrender
the Premises in the required condition.
16.6 Brokers. Tenant warrants and represents that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease. Tenant agrees to
defend, indemnify and hold Landlord and Landlord's employees, representatives and agents
harmless from and against any and all claims, losses, damages, liabilities or expenses (including
without limitation attorney's fees) arising out of or in connection with claims made by any other
broker or individual for commissions or fees resulting from Tenant's execution of this Lease.
16.7 Acceptance. Delivery of this Lease, duly executed by Tenant, constitutes an
offer to lease the Premises, and under no circumstances shall such delivery be deemed to create an
option or reservation to lease the Premises for the benefit of Tenant. This lease shall only become
effective and binding upon full execution hereof by Landlord and delivery of a signed copy to
Tenant.
16.8 Waiver. The waiver by Landlord of any breach of any term, condition or
covenant of this Lease shall not be deemed to be a waiver of such provision or any subsequent
breach of the same or any other tem1, condition or covenant of this Lease. The subsequent
acceptance of Rentals hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach at the time of acceptance of such payment. No covenant, term or condition of this Lease
shall be deemed to have been waived by Landlord unless such waiver is in writing signed by
Landlord.
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16.9 Separability. If one or more of the provisions contained herein, except for
the payment of Rentals, is for any reason held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision of this Lease, but
this Lease shall be constmed as if such invalid, illegal or unenforceable provision had not been
contained herein.
16.10 Liw. Tenant shall pay for all labor and services performed for, and all
materials used by or furnished to Tenant or Tenant's Agents and keep the Premises free from any
liens arising out of work performed, materials furnished, or obligations incurred by Tenant or
Tenant's Agents with respect to the Premises. Tenant shall indemnify, hold harmless and defend
Landlord and Landlord's employees, representatives and agents from and against any liens,
demands, claims, judgments or encumbrances (including all attorneys ' fees) arising out of any work
or services performed for or materials used by or furnished to Tenant or Tenant's Agents with
respect to the Premises. Tenant shall do all things necessary to prevent the filing of any mechanic's
or other liens against the Premises or any part thereof by reason of work, labor, services or
materials supplied or claimed to have been supplied to Tenant, or anyone holding the Premises, or
any part thereof, through or under Tenant. If any such lien shall at any time be filed against the
Premises, Tenant shall either cause the same to be discharged of record within ten (10) days after
the date of filing of the same, or, if Tenant in Tenant's discretion and in good faith determines that
such lien should be contested, Tenant shall furnish such security as may be necessary or required to
(a) prevent any foreclosure proceedings against the Premises during the pendency of such contest,
and (b) cause a mutually satisfactory title company to remove such lien as a matter affecting title to
the Premises. If Tenant shall fail to discharge such lien within such period or fail to furnish such
security, then, in addition to any other right or remedy of Landlord resulting from Tenant's said
default, Landlord may, but shall not be obligated to, discharge the same either by paying the
amount claimed to be due or by procuring the discharge of such lien by giving security or in such
other manner as is, or may be, prescribed by law. Tenant shall repay to Landlord on demand all
sums disbursed or deposited by Landlord pursuant to the foregoing provisions of this Paragraph
16. 10 including Landlord's costs, expenses and reasonable attorneys' fees incurred by Landlord in
connection therewith, with interest thereon at the Stipulated Rate. Nothing contained herein shall
imply any consent or agreement on the part of Landlord to subject Landlord's estate to liability
under any mechanics' or the lien law. Tenant shall give Landlord adequate opportunity and
Landlord shall have the right to post such notices of nonresponsibility as are provided for in the
mechanics' lien laws of California.
16.11 Tenant's Representation and Warranty Regarding Encumbrances. Tenant
represents and warrants to landlord that no portion of the Premises is subject to a mortgage, deed of
tmst or other encumbrance resulting from the acts or omissions of Tenant.
16.12 Recording. Concurrently with Tenant's execution and deliver of this Lease
to City, Tenant shall execute and deliver to City the Memorandum attached hereto as Exhibit "D"
acknowledging the existence of the Lease, which may be recorded by City in the Official Records
of Santa Clara County, California upon execution of this Lease by City. Following Lease
Termination, Tenant shall, promptly following demand from Landlord, execute a quitclaim deed in
favor of Landlord quitclaiming all of Tenant's right, title and interest under this Lease; provided,
however, that Tenant's failure to deliver such quitclaim deed when requested shall not delay or
prevent, or otherwise affect the expiration or termination of this Lease.
16.13 Landlord's Right to Perform Tenant's Covenants. If Tenant fails to make
any payment or perform any other act on its part to be made or performed under this Lease,
Landlord may, but shall not be obligated to and without waiving or releasing Tenant from any
obligation of Tenant under this Lease, make such payment or perforn1 such other act to the extent
Landlord may deem desirable, and in connection therewith, pay expenses and employ counsel. All
sums so paid by Landlord and all penalties, interest and costs in connection therewith shall be due
and payable by Tenant immediately on demand, together with interest at the Stipulated Rate from
the date of payment by Landlord to the date of payment by Tenant to Landlord, plus collection
costs and attorneys' fees.
16.14 Tenant's Remedy. If, because of a default by Landlord under this Lease,
Tenant recovers a money judgment against Landlord, such judgment shall be satisfied only by way
of an offset against any Rent due to Landlord under this Lease. Landlord, nor its employees,
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representatives or agents, shall be personally liable for any deficiency. Neither Landlord's
employees, agents, representatives, nor agents, nor any other person or entity other than Landlord,
nor any of their respective assets, shall be liable for Landlord's breach of this Lease.
16.15 Exhibits. All exhibits, amendments, riders and addenda attached hereto are
hereby incorporated herein and made a part hereof
16.16 Condition.s. All agreements of Tenant contained in this Lease, whether
expressed as conditions or covenants, shall be constmed to be both conditions and covenants,
conferring upon Landlord, in the event of a breach thereof, the right to terminate this Lease.
16.17 No Partnership or Joint Venture. Nothing in this Lease shall be constmed as
creating a partnership or joint venture between Landlord, Tenant, or any other party, or cause
Landlord to be responsible for the debts or obligations of Ten ant or any other party.
16.18 Constmction. This Lease shall not be construed either for or against Tenant
or Landlord, but shall be constmed in accordance with the general tenor of the language. This
Lease shall be construed in accordance with the laws of the State of California.
16.19 Joint and Several Liability. If Tenant consists of more than one (1) person
or entity, the obligations of each Tenant under this Lease shall be joint and several.
16.20 Binding Effect. Subject to the provisions of Paragraph 14 and Article 9, all
of the provisions hereof shall bind and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and permitted assigns.
THIS LEASE is effective as of the date the last signatory necessary to execute the Lease
shall have executed this Lease.
TENANT:
THOMAS ROAD PROPERTIES, a
California Limited Partnership
Dated:
By:
Its:
LANDLORD:
CITY OF GILROY, a municipal corporation
Dated:
By:
Its:
ATTEST:
Susanne E. Steinmetz, City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY
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. ~
EXHIBIT ", A"
~GAL-DESCRIPTION OF ADJACENT PARCEL
BEING all of Lot 1 as shown on the map of "Tract No. 8663,
The Vineyards Unit. 1", which map is filed for record in
Book 667 of Maps at pages 38 and 39, Records of Santa Clara
County, California.
EXHIBIT "A"
(See Map Exhibit "S")
RESOLUTION NO. 94-78
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF GILROY CONDITIONALLY APPROVING APPLICATION
A/S 94-22, PLANNED UNIT DEVELOPMENT DESIGN
APPROVAL, TO ALLOW CONSTRUCTION OF 43 SINGLE
FAMILY HOMES ON INDIVIDUAL LOTS AND TO CREATE
A PUBLICLY DEDICATED CREEK PRESERVE ON
PROPERTY LOCATED WEST OF THOMAS ROAD, NORTH OF
SANTA TERESA BOULEVARD, APNS 808-20-006 AND A
PORTION OF -016
WHEREAS, Kaufman & Broad and Monterey Bay, Inc. have made
appl ication A/S 94 -22, for a Planned Unit Development (" PUD")
design approval, to allow construction of 43 single family homes
on individual lots and to create a publicly dedicated creek
preserve on property located west of Thomas Road, North of Santa
Teresa Boulevard, APNs 808-20-006 and a portion of -016, such
incorporated herein by this reference: and,
property as is shown on the map attached hereto as Exhibi t A
WHEREAS, .on May 16, 1994, this City Council, upon
recommendation of the Planning Commission, duly approved a zone
change request for the subject'property, Z 93-02, and a Tentative
Map request, i.;.TM8..93-03,i to enable the subdivision creating the
subject 43 lots; and,
WHEREAS, the City has prepared and circulated in accord-
Negative Declaration for Z 93-02, a project the environmental
ance with the California Environmental Quality Act ("CEQA") a
review of which encompasses this project: and,
- .
noticed public hearing on A/S '94-22 on October 6, 1994 and after
mJEREAS, the Gilroy City Planning Commission held a duly
that public hearing voted unanimously to recommend approval of A/S
94-22, subject to the 12 conditions listed in the Planning Staff
Report on the matter dated September 27, 1994 and attached hereto
as Exhibit B and incorporated herein by this reference, but with
one modification to Condition No. 2 to exempt a tree (tree # 31)
from being relocated for the widening of Thomas Road: and,
RESOLUTION NO. 94-78
-1-
EXHIBIT D
WHEREAS, this City. Council held a duly noticed public
hearing on A/S 94-22 on October 17, 1994, at which public hearing
the Council considered the project and the conditions proposed to
be attached to its approval along with staff reports, public
testimony and documentation or other evidence on the project and,
based upon substantial evidence produced both in writing and
orally, resolved that the project should be approved; and,
WHEREAS, also based upon substantial evidence, the
Council approved of the Planning Commission's proposed modification
of Condition No.2; and,
WHEREAS, the location and custodian of the documents or
other materials which constitute the record of proceedings upon
which this resolution is based is the Office of the City Clerk.
NOW, THEREFORE, BE IT RESOLVED THAT:
A. The Council finds as follows:
1. The project is consistent with the Gilroy General
Plan because it conforms to the land use designation for the
property on the General Plan Map, and it is consistent with the
intent of the text, goals, and policies of the General Plan
documents.
2. There is no substantial evidence that the project
as mitigated may have a significant effect on the environment.
3. The proposed development is consistent with the
findings (a) through (i) as required in Section 50.55 of the Gilroy
Zoning Ordinance.
4. The Negative Declaration prepared for Z 93-02 is
applicable to A/S 94-22 and has been prepared in accordance with
CEQA and reflects the independent jUdgment of the City.
5. The Council hereby adopts for A/S 94-22 the Negative
Declaration and the mitigation monitoring program contained in the
Negative Declaration' adopted for Z 93-02.
6. The City Council further finds that:
(a) The City has taken all actions required by CEQA; and
RESOLUTION NO. 94-78
-2-
(b) Approval of A/S 94-22 is in the public interest.
(c) A/S 94-22 should be and hereby is approved, subject
to the mitigation measures and mitigation monitoring program set
forth in the Negative Declaration adopted for Z 93-02, and subject
to the 12 conditions contained in Exhibit B, as so modified by the
Planning Commission.
PASSED AND ADOPTED this 7th day of November, 1994 by the
following vote:
.\ YES:
COUNCILMEMBERS: GILROY, KLOECKER, MORALES,
ROGERS, ROWLISON, VALDEZ, GAGE
COUNCILMEMBERS: None
COUNCILMEMBERS: None
NOES:
ABSENT:
APPROVED:
/s/ DONALD F. GAGE
Donald F. Gage, Mayor
ATTEST:
/s/ SUSANNE E. STEINllliTZ
Susanne E. Steinmetz, City Clerk
RESOLUTION NO. 94-78
-3-
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SEE IMPROVEMENT PLA"N . SHEET 6)
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EXHIBIT 8
EXHIBIT "e"
LEGAL DESCRIPTION OF REAL PROPERTY TO BE LEASED"
BEING a portion of the Babbs Creek Park Preserve as shown
on the map of "Tract No. 8663, The Vineyards, Unit No.1",
which map is filed for record in Book 667 of Maps at pages
38 and 39, Records of Santa Clara County, California, and
being more particularly described as follows:
BEGINNING at the most northerly corner to Lot 1 of said
Tract No. 8663, in the westerly line of Thomas Road, as
shown on said Map, and running thence along the
northwesterly line thereof S.65023'24"W. 102.66 feet to the
northwesterly corner thereof: thence along the westerly line
thereof South 107.89 feet to the southwesterly corner
thereof; thence continuing along the easterly line of said
Babbs Creek Park Preserve South 10.09 feet to the
southeasterly corner thereof in the northerly line of Babbs
Creek Drive; thence along said northerly line and the
southerly line of said Preserve along a curve to the left
with a radius of 320.00 feet from a tangent bearing of
S.82021'27"W., through a central angle of 4018'24" for
distance of 24.05 feet; thence along a tangent curve to the
right with a radius of 280.00 feet, through a central angle
of 11056'55" for a dist.ance of 58.39 feet; thence West 44.38
feet; t.hence leaving the northerly line of Babbs Creek Drive
N.6042'17"E. 72.27 feet. t.o a point in t.he northwesterly line
of Babbs Creek Park Preserve; thence along said
northwest.erly line East. 19.37 feet, N.22013'24"E. 78.01
feet, N.77035'21"E. 82.82 feet, N.45037'47"E. 90.13 feet and
N.22013'16"E. 44.30 feet to the most northerly corner of
Babbs Creek Park Preserve in the westerly line of Thomas
Road, as shown on said Map; thence along said westerly line
and the east.erly line of said Preserve South 94.94 feet to
the point of beginning, and
CONTAINING THEREIN 0.149 Acres (19,540 Sq. Ft.).
EXHIBIT "C"
(see Map Exhibit "E")
EXHIBIT "D"
MEMORANDUM
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Gilroy
7351 Rosanna Street
Gilroy, California 95020
AUn: City Clerk
RECORDING REQUESTED PURSUANT TO
GOVERNMENT CODE SECTIONS 6103 AND 27383.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
MEMORANDUM
THIS MEMORANDUM is entered into as of March 1, 1997, by and between the CITY
OF GILROY, a municipal corporation ("Landlord") and THOMAS ROAD PROPERTIES, a
California Limited Partnership ("Tenant"), with respect that certain Lease dated of even date
herewith by and between Landlord and Tenant.
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, certain real
property located in the City of Gilroy, County of Santa Clara, State of California, as more
particularly described in Exhibit "A" attached hereto ("Leased Property"), upon the terms and
conditions of the Lease. The term of the Lease shaIl be for ten (10) years commenci;lg upon
satisfaction of certain conditions as described in Section 2.1 of the Lease, but in no event later
than April 30, 1997, subject to sooner termination as set forth in the Lease.
This Memorandum shaIl incorporate all of the provisions of the Lease as though fuIly set
forth herein. This Memorandum is entered by the parties for purposes ofrecordation and shaIl
not be deemed to modify, amend, alter, limit or otherwise change any of the provisions of the
Lease. In the event of any conflict or ambiguity between the terms of this Memorandum and the
terms of the Lease, the terms of the Lease shaIl prevail.
IKKS\311908.03
75-021404706002
-1-
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum
as of the date first set forth above.
THOMAS ROAD PROPERTIES,
a California Limited Partnership
By:
Its:
CITY OF GILROY,
a municipal corporation
Attest:
By:
By:
Its:
Approved as to form:
By:
City Attorney
\KKS\311908.03
75-021404706002
-2-
STATE OF CALIFORNIA
}
ss.
COUNTY OF
On
appeared
, before me,
, personally
o personally known to me -OR- 0 proved to me on the basis of satisfactory
evidence to be the person(s) whose
name(s) is/are subscribed to the within
instmment and acknowledged to me that
he/she/they executed the same in
hislher/their authorized capacity(ies),
and that by hislher/their signature(s) on
the instmment the person(s), or the
entity upon behalf of which the
person(s) acted, executed the
instmment.
WITNESS my hand and official seal.
SIGNA TURE OF NOTARY
STATE OF CALIFORNIA
}
ss.
COUNTY OF
On
appeared
, before me,
, personally
o personally known to me -OR- 0 proved to me on the basis of satisfactory
evidence to be the person(s) whose
name(s) is/are subscribed to the within
instmment and acknowledged to me that
he/she/they executed the same in
hislher/their authorized capacity(ies),
and that by hislher/their signature(s) on
the instmment the person(s), or the
entity upon behalf of which the
person(s) acted, executed the
instmment.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY
\KKS\31190B.03
75-021404706002
-3-
CAPACITY CLAIMrn BY SIGNrR
Though statute does not require the
Notary to fill in the data below, doing so
may prove invaluable 10 persons relying
on the document.
o INDIVIDUAL
o CORPORATE OFFICERS(S)
Tille(s)
o PARTNER(S) 0 LIMITED
o GENERAL
o ATTORNEY-IN-FACT
o TRlJSTEE(S)
o GUARDIAN/CONSERVATOR
o OTHER:
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies)
CAPACITY CLAIMW BY SIGNER
Though statute does not require the
Notary to fill in the data below, doing so
may prove invaluable to persons relying
on the document.
o INDIVIDUAL
o CORPORATE OFFICERS(S)
Title(s)
o PARTNER(S) 0 LIMITED
o GENERAL
o ATTORNEY-IN-FACT
o TRUSTEE(S)
o GUARDIAN/CONSERVATOR
o OTHER:
SH.!~ERJSl!E PRESEm' l~G:
Name of Person(s) or Enlity(Jes)
EXHlBIT "A" TO MEMORANDUM
Legal Description of Leased Property
[To Be Attached]
IKKS1311908 03
75021404706002
-1-
..,
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. ( 1) R = 280', 6. = 11. 56' 55"
( 2) R = 320", 6. =
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EXHIBIT E
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M^P TO ^CCOMP^NY LEG^L DESCRIFTON
PORTION OF B^BBS CREEK P^RI< PHESERVE
TRACT NO 8663, "THE VINEY^RDS, UNIT NO.1"
Book 667 of Maps, pages 38 and 39,
In the City of Gilroy, Santa Clara County, California
January 1997 1" = 50'
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.0"408 998
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FFlCES
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EXHIBIT A
1l/UVti4
1<3:15
U~08 998 5J88
LAW OFFICES
~006/01i
.' /;-Planning Department
/STAFFREPORT
September 27, 1994
Fru; NUMBER: PUD: A/s 94-2.2
APPLICAN'I': ltaufman , !!.road, HCD1:.erey Bay, IDe.
LOcATION: ~G8t Bide of Thomas ~c<<d, north of santa Teresa Soulevard
STAFF PLANNER: William FaUB
..............................................................................
......................................*.......................................
REQt7!;S'!'ED A~lo.-:
Planned unit Development (POD) approval for Pna.e I cf -Thg Vineyards at
Thomas Road-, on lS~ acre. of a larger 39f acre KI-PttO aite. The prcjec~
will allow the construction of 43 single family hemes on individual lot~
and create a publicly dedicated cr"k preserTe . (Babbs Canycn .creek).
DESCRIPTIO. OF PRO~:
Parcel No.:
Parcel Size:
Flood Zone:
809-20-006, and a porticn of 016
approximately 15 acres
-D-, panel f 06034000030, dated 09/04/87
{with a revised 04/18/91 LOHAR}
STATUS OF PROPERTY:
Existinq Land OGe
SF Dwelling, Agricultural uses
Genual Plan DelJicmation
Residential Low Density
- .- zonina
Rl-PUD
I
J
STATus OF' SURROtmDIRG PROPmln:
.
E~9tinq Land Use
N: Agricultural uues
S: SF Dwe lling, Agr ieul turd
E: Agricultural u~e8
W: Agricultural uses
General plan Desicmation
Ro-ideatial Medium Deosi~y
R88iden~i.l Low Density
Resid.atial Low Density
Re.idential Low Density
Zoninq
R3-PUD,Co
Rl..PUO,co
County
IU -rem
I
EXHIBIT B
11/0211/4
16:15
'0'408 998 ~J88
LAW OFFlCES
~OO/lU17
Staff Report PUD: A!S 94-::22
2
..-09/27/94
eotnr01DQ.!l'CE OF UQCKST lfr.1'lI CDDAL PLAJI:
The proposed 4lanned unit Development request con!~ to the land us.
designation for the property on th. General l'lan map and is cousi.ten~ with
the intent of the tert of the General Plan ~nt.
JCI1V1:RO!iDmlr'l!AL IHPA~:
A prior expanded Initial ~1:t1dy vas prepared unwu: ZODe Chang-e reque.t Z 93-
02, involving a larger 52.75: acre d8'Velopment site. The 8ubjeet Planned
Onit Development. request represents PblUe I for ~t project. 'l'be Initia.l
study va~ independently reviewed by city .taff ud reflects the independent
judgement of the City of cilroy_ Tb. Initial study identified potentially
significant effects on the environment,. however, the .pplic~t ba.. agreed
to specific revisioDS in the project and/or individual mitigation mg&surea
will be applied to the project "'bich avoid or mitiga.t. the effect.. to a
point where DO 8ignificant ethcu vill o<:cu.r. Tbere i.s DO .ubst.an'tial
evidence that the propo.ed project, a8 ravi3ed, m<<y ha.v. . significant
effect on the environment. Theretore, a Wegative Declaration was preparlild
-and issued under Z 93-02.
RELATED APPLIc:ATIOlIlS I
Z 93-0~1
A :zone cbange request to amend the city ot Gilroy'. Zoning Map f::-om Al
(Agriculture) and R3 (Medium Density Residential) to Rl-POD (single F~ly
Residential, Planned onit Development) on 39.33t acr.., and to RJ-POD
(Medium Density Residential, Planned Onit Development) on 13.42: acr...
This Zone Change rDques't Wft1I recommended for approval by the Plann~q
Commission OD 5/5/94, and approved by the City council on 5/16/94.
'.DC 93-03:
Tentative Map for Pha.e I of -Th. Vineyard. at Thoma. Road- development
project, a tenta'tivQ map request to subdivide 10.19: acre. of a larger
39.33f acres of RI-POO property. The subdivision vill create 43.ain;le
family lots and a publicly dedicated cr~k preserve (Babbs canyon Crgek).
Thi~ Tentative Map wa~ recommended for approval by the Planning C~a~ion
on 5/5/94, and approved by the City couDcil on 5/16/94.
.
ROO BACXGROUND:
The original RDo approval qianted by the ci t.y council, RD 82-03, prcpoud
tho deyelopment of 63 .ingle family unit. on Thoma8 Read under a ~~-y.ar
buildout schedule. In the ~d 1980's the applicant received City Council
approval to transfer 21 of the.. units to a develo~t in the city'S
northwest quadrant. The remaining 42 units ,,"ould b4 constructed in the
fhst pha!lQ of their current propos.l on Tbomas :Road. The pr~rty
currently has onlil single family dwelling, giving the project a Pha.e I
buildout ot 43 dwelling unit.s.
11/02184
16:16
~408 998 5.188
LAW OFFICES
~008101i
,
:<...../ /.
/
staff Report PODs A/S 94-22
3
. .09/27/94
~YSIS OF ~s
The applicant (ltaufman (, Broad) is requesting Plamled. onit Developm..nt
(1'00) approval for Phue I of -'l'he Vineyards at Thoma. ltcad- project. Th.
proposed dGvelopment request vill involve approximately 1St acres of . Rl-
POD site. Th. PUD viII permit constru.et.icn of 43 .ingle family lots and
viII allow the creation a publicly dedicated creek preserve (~a.bbD CUl}'on
Creek) . The l'base I site is lcc:atatd on the vast. aide of '1'hcma.s Road along
the BoUth side of the Babbs Canyon creek, and north ot Santa Tet'asa
Boulevard.
Tbe proposed POD design plan with 43 single family lots i8 consi.tent with
the city'. General Plan land use ~pwb.ich d..iqn&t.. the site al!
Residential Low IkInsity. A lna:dmum bu.ild-Qut density not to exceed 7~
dwelling unit. per net acre is allowed under tbbdedgnation. The site
could potentially yield approximately 70 dwelling units, tbought the
eurrentproposal delineates 43anits in & develOPMent schema consistent
with prior ROo approval.
As proposed, the project ~ill have a density at aboat 4.2t dwelling units
per acre, with lots ranging in aize from 4,656 to 10,805 8quare feet
(averaging 6,470 sq.ft.). The POD combining di.trict added to the
underlying Rl base zone all~ the applicant topreserva and dedicate the
natural creek area adjacent to ~e projec~ .it., and ~ill also allow the
averaging of lot .izea in order to per.=it lots less than the minimum 6,000
square feet.
Primary acceS8 to Phase I will be prO"Y'ided from Thoma8 Road adjacent to the
project side, with secondary access gained vben Phase II i. comple~ed (Ref:
TH 94-05). The future realignment of Thoma. Road, completely outside of
the realm of Phase I, vill not occur until properties north of Babbs CUlycn
creek are developed (note: preliminary plans for these northerly phases
have been submitted under pending application RD 94-05, no~ yet reviewed by
the Planning Commission or city council).
A naturally occurring winter stream (Dabbs Canyon creek) will providA a
sceoic border for the north side of Phase I. The delineation, proposed
improv~nts, and dedication of 'Babbs Canyon creek, at approximately 5:
acres, is part of the subject POD request. specific details for the
_iJnprovement and preservation of the crgek are &.180 subject to the ..revie'\T
ADd approval by the California Department of Fish , ~e.
..
Tbere are five key elements to the proposed Phase I -The Vinevard9- PUn:
#1. Planned eDit DeTelo~nt Site plan {attachad}
t2. Master Plan for Bahblll Creek lluffer Area {attached}
f3. Revegetation ~ Monitorin~Plan . {attached}
.4. T'r_ SOn'er and preservation plan {att.ached}
IS. Design " Elevation plan... {atbched}
111'0.::1'9"'"
10:1T
'0'","00 990 IIllOO
LA" On>I~~
~0091'01'
statf Report pUOJ A/S 94-22
.
. -09/2 7 /94
t 1. n.um:n ~ DEVELOPMEJI'l' SI'l'I P%.U' { I. t tached}
This prOpolled plan delaeates tile OV'8rall proj.ct dte duign with 43
sil1qle family lots, perimtlt.ar for til. proposed Ba.bbs cr.eJc pru-.rve, the
ultim.ate rigbt-of-way for Tbomu Ro<<d, and tU boo.n.ciuy for the fut:ur8
vineyarci8 Pbue II (RefJ TH 9-4-05). 'l'be applicant bas draw the footprint
for each of the propeaed single family ~t&cbed homeD vith an approximate
location for private yard fences (delineated fer lots #33 through .36
ooly). Front and rear yard setbacks vill ~t m..ixWlnxm ci t:y S't.anda...~,
with side yazds propolled at fin f8Qt (1' leu than the !IIi 1'l;ll'Um
required). using the POD fl.xibility, the applicant vill build heme. with
as' setback On one side and a larger than no=mal setback on the opposiu
side.
t:2. MASTE'R. PLA!I FOR BABBs ClU:XX BUn'ER. ~ {attached}
Thill plan defioes the boundary for the proposed S: acre Babb. canyon C=e.k
preserve witbio the project site, a. ~ll &S delaeating the oorth half of
the creek preSll!lrve to be dedicated upon the future development of p~perty
to the north. Th. plan illustrate!! ;.nen.l improvement. that will be madQ
within the creek area all agreed upoo by the California Depart:neot of l'iJlh
, Came, Santa Clara county Watar oistrict, Army Corps of Eogioeers, and
the City Depa.rt:meot of Park. l Recreation. on september 20, 1994, the
city of Gilroy Parks , Recreation Commiasioo reviewed the proposed ~t8r
Plan and fonrarded their recommendatioo to the CCUncil for approval of the
plan as submitted.
13. REVEG~IOW . HON"ITORIXC: ~ {attached}
This proposed plan provide8 a comprehensive program for presarvinq and
au<;:menting the existing nAtural riparian habitat within 'the aabb. Creek.
The plan recommends that 47 native trees (Va.lley oak, Coa.t LiVQ oak, and
Western sycamore) be plant.d within the cr.ek corridor in order to crQate
a continuous riparian woodland canopy. Io add.i tioo to introducinq
indigenous tr~e and native ground co:ver vegetation, thu plan also
addresses the installatioo of two drainage outfall structu-~s. The
submitted plao was developgd in close coordination with the California
Department of Fish , ~e, Santa clara County Water District, Arzy corps
of Engineers, and the city D@partment of PaJ:'Q ':R.~eation. Otl September
20, 1994, the City of Gilroy parks i Recreatioo Commission reviewed the
proposed Revegetation , Monitoriog Plan and forwarded their recommendatioo
far approval to the c1 ty Couccil.
f4. 'l'REE SURVE:Y and PJU!:S~:rOll PLAH {attached}
This survey catalogs all trAg. located on thu project site. Table'l
within the report identifies each trOG, and an attached ~p delineates the
specific locatioo. A total of 57 trees ,w~re observed, most within the
Babbs Creek corridor. With the exceptioo of six t.~Q', located within the
right~f-""ay for the future videning of Thom.u Road, all t.rlte~ 'il7ill be
preserved as part of the Kaster Plan for the Babbs CrQaK Butfer Area. of
th~ ai~ trees ~ing removed for th~ widenini of Tbamag Road, ~~~ ax.
Coa9t Live Oaku (.r, 12, aDd f31)' ADd the other three ~e Z~gli.h W&lnuts
{t32, f33 and .34). staff is recommendiog th&t the thr.. oak t.ree~ b.
relocated to within the adjacent Babbs cregk Buffer Area ($.. condition
t2 of tllls report). 00 september 20, 19 9 4, the city of Gilroy parke &
RQcreation Commission reviww.d the Tree survey and Preservatioo plan and
forwardgd their recommendation for approval to the city Council.
1l10ZlIl~
16:17
"0'408 998 5J88
LAW OFFICES
~010/01i
staff Report PUDz A/S '94-22
5
..!J9/27/94
IS. J)BSXCll ~ ~XDJf PLAJIS {attached}
ltaufman I. BrOlld would like to denlop the 43 single family lc1:s
utilizing three proposed znod.l.. Each model vil1 have ~ c1isti.oct
81.v.~ion alternativ.., thereby crwating'nin. available hou.. plans.
In addition, each hou.e plan can also be reversed, providing grea1:.er
di versi t.y to the overall development 8chem..
As propo8e<i by Jtautzan ,. Broad, the three ban plAn. ue designed in ll.
modified "California craftsman" st.yle of arehi~ectu.re with gabled
roofs, wood detailed. windows " dOO1:'., covered front porch .nt....-y, \lith
8~UCCO or horizontal wood siding. The thr&e proposed house plan. are
as tollovsz .
PLAJr 345.391
~ single story J-bedroom hou.. with 1,311 -quare feet and an a~~ached
two car garage. This JDOdel vill have a 3rt! bedroo:l/den option. TrOI1t
exterior details vill include a small front porch, t%8nch wind~,
custom garage and front .n~ry door., and a gabled roof vith concrete
t.iles.
PLAl!I 345.35:
A Bingle story 3-bedroom hOll!!. vith... 1, ~ squar. feet and an at.tached
two car garagfl. This plan will have a 4t.h be~/d.n option. Front
axterior details Vill include a small front porch, trench window8,
custom garage and front. entry doer., stucco or horizontal wood siding,
and a gabled roof vi th concrete ~ile!!.
PLAR 540.20:
A two story 3-bedroom house lrith 1,1548 8qua.n. feet and an attachQd tvc
car garage. This plan has .. 4th b.d.rcom/lof~ option. Front exterior
details will inclUde a covered front porch, stucco or horizontal wood
Biding, french windows, cnsta= garage and front entry doors, a gabled or
hipped roof design vith concrete tilg..
AB submitted, the proposed PUo i. cOD.i.tent with the city' S (i(!neral Plan
land Use map which designates the site as Residential Lev Density,
substantially consistent with prior city Council Residential o.velo~n~
Ordinance and Tentative Map approval, consistent with the City's ZcniI1g
ordinance, and 8ub8~antially consistent with applicable develo~
policies.
,...-- .
.l'$QUIRXD FnmUGS t
~
II1 order to grant Planned Unit Developmgnt (PUD) approval, the Pluming
c~is.ion and City council must find that the propo8Qd plann.d Unit
~velopmen~ viII: ~ ~ .
A. Coc.fonn to the Gilroy General Plan in tenns ot genQral location and
9tandard3 of de~.lopment:
.U.lU~/.H
.l.O;.UI
u~uo \1\10 ;),)00
LArr Urr 1\"1:.~
~OlllOl'i
,
Iftaif Report PO'Ds )./s 94-22
15
--09/27/94
B. Provide the type- of de"lelopment vhich vill fill . specific n~ of the
In.rround.ing ar.47
C. ~ot raquir.. urban ..rvices beyond those vhich ar. eurrvntly available;
D. Provide a hAnDcnio08, integrated plan which jOlltiIies axe.ptions, H
Bucb arB required, to tho no.DllAl requirftm8Db of this ordi.cance;
E. Reflect an eeouomic~ and etficien~ ~ttern of land uaea;
Y. Include greater provisions tor landscaping and open apace than would
generally be required;
c. otili28 aesthetic design principle. to create attractive buildings and
open areas which hleod vi th the character of aurrounding areas;
B. Not create traffic cooqslltion, noise, odor, or other adverae ef!.et~ on
surrouodinq areas; and
I. Provide adequate acce.a, parking, land.capin~, trash ar.a. and sterage,
as nec811l1azy.
~ RECOMK!:!mUIOR:
staff recommends that the Planning commis.ion forward a recommendation to
the City council ~ approve this reque.t for ~he followin~ reasOIa:
(A) The proposed POD project conf~ to ~e land Use designation for the
property on the General plan map, and i. consistent with the intent of
the text of the General plan docmnent;
(B) Public utilities and infrastructure improvements needed in order to
oerve the proposed project are in close proximity along Thomas Read;
(el There will be bo significant enviro~ntal impacts as a re8ul~ of this
project due to the required ~ti9ation mGa.ures to be ap~liQd at the
development stage; and
(D) A4 submitted, the proposed development i. con8ist.~t vith the necessa--y
POD Findings A through I, as statad under Zoning ordinance Section
50.55.
~
In addi tiOD. staff recatlaMtn.d..s the follcwizu:r ~ tio!:ls be plac:ed on tie
qrantinq of ~is Planned unit Devel~t recruest:
1. ~TIGATION MEASURES t1 tnrouqb .34, contained within the revised
NegativG Declaration da~ 04/26/94 for Z 93-02 involving the .object
project, .h&ll be applied to th. approval of this Planned Unit
Development project in order to raduce and/or eliminate all potential
significant impacts to a level of insignificanc., a. required undgr the
California Environmental QUality ~ (CECA).
ll/vU ~4
16:18
'0408 998 ~J88
U\i OffICES
!4J012/01i
.
st.a.ff R.epon PUD: Als 94-22
7
-.Oi/27/94
:2. Of th9 dx treeD being rUXJVO<1 tor the widening of Thomas Roa.d. the
three Coast Li va. Oaks (identified in the 'l'REE :'UJWliI Rln'ORT &JI t.---ei!S tl,
.2, and '34) sball be bo%ed and relocat..d into 1:he Babbs cr.e.k
preserve. RamQval (boxing) and tran.portation proeednr1l., and the
specific destination within the Babb. er..Jt pl:'u.rn, .ha.ll ~ subje-ct
to the revi.w and approval by the Department of park3 '~eation. .
3. All dwalling8 positioned adjacent to Thoma. Ro&d sh.&ll be desi~ed to
control interior noise level. in habitable rooma, fram ~~ior source~,
with tested assembli.. having S'l'C of :n:c ratinga of .4!5 db or mora (O'laC
Appendi.x Section !i401(h), .ubject to the revi.", at1d approval by ~e
Building Department.
4. An all-weather acceDS road, not 18811 than twenty (20) f..~ i.n width, for
fire engines 8hall be provided before commencing any cc::mbust.ible
construction. Fire hydrants shall ILlso be installed and zu.i.ntainad
before combustible const.--uction begin., to meet the approval of the city
1" ir B De pa.rt.men t .
5. Fire hydrant locations, looping, and water main .izing .hall b4! Ilubject
to the review and approval by the Fire o.part::zlent.. Building, Life and
Environmental safety oivision and 7Ublic Works o.partm&nt, &Ild shall be
subject to the following:
A. Materials used for off-sit. installations sball be per city of ~i~cy
Standa-~ Details. This includes pipe, valves, hydrants,. back-flow
prevention devices, concrete, trench back-till, .te.,
B. Pipes which serve on-site fire service systems are .ubject to the
specifications of the Fir. De~nt'8 Building, Life and
Environmental SafBty Division once they depart from the city main.
Any on-.ite or fire service 8yst;lilII must have a City standard valVQ
intervening; and .
c. Inspection of on-site fire service SYBt~ will be the responsibility
of th8 Fire Department.s Building, Life and Environmental safety
Division.
6. All proposed fencing .hall ~et the requirements of the city's Zoninq
Ordinance Section 34, subject to the revi8v and approval by the Planning
~pa..l..t:n. nt .
7. Stteet improvements and the duign of all stcr.n drainage, 8e'Vllr and
water lines, and all street sections an. widths .ha11 be .ubject to the
revi8W and approval by the Public Works Department.
8. All utilities to, througb, and On the site shall be installed
und8rqround in accordance ~ith section 21.120, subject to the review and
approval by the Public R6rk8 Department.
9. Tbe developer shall subnUt a soil. r'Qpcrt for the project. All qrading
operatioDS and loil compactioc activitieu shall meet the approval of tbe
city Engineer. Grading plana .b.all show grades of all adj~cent
properties, subject to thg review and approval by the Public works
Depart::nent.
11/02./94 16: 19
'C'408 998 15:188
LAW OFFICES
~OlJ/Oli
staff Report lUD; A/S 94-22
8
..~9/27 /94
10. All lotll .hall drain to the rtraat fer rtorm drainage, .ubjeet to the
revie", and approval. by the PUblic work. De~nt.
11. All Propcl.ed retaining' vall. mu.t be c:~ted of pe.::manan~ material.
such as concr.t.e or ma.sonry, .ubjeet. to the review and approvu by the
Public works Department:. Wood "ill not b. permitted.
12. Show loclltion of all existing v.1l.. .I.1l exi.ting wat;.er vells .hal.l b1!
sealed to meet t.he approval of the c.i t;y !ngineer and the santa. Clara
Valley Water Diatric:t (SCV1l'O).
Respectfully,
~f)cr-
Michael Dom
Diractor of Planning
Attachments
Photographic Image may be
poor due to condition of
orlgineJ document
,
I, SUSANNE E. STEINMETZ, City Clerk of the City of Gilroy, do
hereby certify that the attached Resolution No. 94-78 is an original
resolution, duly adopted by the Council of the City of Gilroy at a regular
meeting of said Council held on the 7th
at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
day of November
, 19-.2L,
Official Seal of the City of Gilroy this 14th day of
November
,1994.
(Seal)